Richard S. Diamond Family Law Blog on Lawyers.com

Can I relocate to another state with my children ?

Friday, May 1, 2009 by Richard S. Diamond

New Jersey has an anti-removal statute N.J.S.A. 9:2-2 which provides that a child who was born in this State or who has resided here may not relocate to another state absent the consent of both parents or an order from the court finding sufficient cause to permit such a move, unless the child is aged fourteen or more; when they can give their own consent to the move for the purposes of compliance with N.J.S.A. 9:2-2. See Kavrakis v. Kavrakis, 196 N.J. Super. 385, 391 (Ch. Div. 1984).

In a traditional custody setting where one parent serves as parent of primary residence, a removal application is considered under the two-part test of Baures v. Lewis, 167 N.J. 91 (2001). Baures requires the removal to be granted where the proofs demonstrate that (1) there is a good faith reason for the move and (2) that the move will not be inimical to children's best interests. Id. at 118.

What does the court system consider is a good faith reason for a move ? Examples include relocating to be closer to family support, to get married, live where it will be less expensive or to start a new job.

After the party seeking removal has shown there is a prima facie good faith reason for the move, the burden shifts to the non-custodial parent to address the second prong of Baures and show that the move is not in the child’s interest and that the proposed parenting plan is not reasonable.

Justice Long in Baures, established a 12 factor test to determine if a move was inimical to a child’s best interests:

the reasons given for the move;
the reasons given for the opposition;
the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed;
the effect of the move on extended family relationships here and in the new location;
if the child is of age, his or her preference;
whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
whether the noncustodial parent has the ability to relocate;
any other factor bearing on the child's interest.

Id. at 116-117. The court is required to consider those factors which are relevant to each individual case, and may weigh different factors unequally. Id. at 117.

In reality, if school districts are comparable and educational opportunities are equivalent, it is hard to show that a move will be inimical to a child’s best interests. The fact that they may have reduced parenting time with the other parent as a result will not bar a relocation and most relocation or removal applications where the Baures standard applies are now granted.

This post was previously published on my New Jersey Divorce Law Blog. For a consultation on any New Jersey family law matter please contact me at 973 379 9292. Further information on the law firm of Diamond & Diamond, P.A. can be found on our web-site.

Posted at 09:17 AM

Topic: Family Law